16:24 08Jul07 RTRS-TEXT-Opinion of lawyer who
drafted Palestinian law July 8 (Reuters) - Anis al-Qasem, who led the
drafting of the Palestinian interim constitution, disputed President
Mahmoud Abbas's legal authority to install a government last month that
removed Hamas from power without parliamentary approval. Below is the
text of his reply to questions from Reuters:

"It is clear from (Basic Law) Article 45 that
the president has the power to dismiss the prime minister. However,
under Article 78(3), the dismissed government continues to run the
affairs of government temporarily as a caretaker government until the
formation of the new government in the manner provided by Basic Law.
"Under Article 79(4) of Chapter 5 (on executive authority), neither the
prime minister nor any minister shall assume his office except after a
vote of confidence from the Legislative Council (parliament)...

"Conclusion: The president has the power to
dismiss the prime minister and to start the process of the formation of
a new government. The basic ingredients of this process that give
legitimacy to the new government are a vote of confidence by the
Legislative Council and the oath of office.
"Until the formation of the new government in accordance with the
procedure laid down in Chapter 5 of the Basic Law, the dismissed
government continues to act as a caretaker government. The Basic Law
contains no special provisions for what is sometimes called 'emergency
government'."

"As to the powers of the president in a state
of emergency, the only power specifically given to him is to declare the
state of emergency in the manner provided in Article 110. He cannot
issue decrees suspending any provisions of the Basic Law.

"The Legislative Council continues to function (Article 113), and none
of the other provisions of the Basic Law may be touched except as
provided in Article 111, which deals only with restrictions that may be
imposed on basic rights and freedoms, and even these may only be
affected to the extent necessary to fulfill the objective of the
emergency as stated in the emergency decree.
"It is worth remembering that the whole Basic Law has been amended to
reduce, rather than increase, the powers of the president as a result of
the power struggle between Mr. Abbas when he was Prime Minister and the
late President Arafat.
"Of course we anticipated that, in a system where both the president and
the legislature come to power through popular elections, there is the
likelihood that the president may belong to one political party while
the majority in the legislature may belong to another, with the
possibility of divergence of policies, as it has happened frequently in
democracies like the United States and France.
"In a situation like this, compromises through dialogue are struck and
neither the president nor the legislature would attempt to thwart the
will of the people. If a deadlock is reached, the president may exercise
the power given to him by Basic Law and dismiss the government and
appoint a new government that would, ultimately, receive the approval of
the Legislative Council. Through this requirement of approval the
elected representatives will determine the propriety or otherwise of the
action of the president and the will of the electorate will not be
thwarted. That was the expectation."
"What we had not anticipated is the reaction of 'democratic'
governments to the free exercise of the Palestinian people of their
democratic right to change the government, a government whose corruption
and lawlessness, which Palestinians considered a stain on their culture
and reputation, have been the talk of the international community...
"No constitutional draftsman would anticipate such a situation when his
aim is to provide a basic law anchored in democratic principles and the
rule of law."
((Editing by Alastair Macdonald and Mary Gabriel;
adam.entous@reuters.com)
Keywords: PALESTINIANS LAW/TEXT

NABLUS, West Bank, July 8 (Reuters) - The
senior lawyers who wrote the interim Palestinian constitution say
President Mahmoud Abbas exceeded his powers in appointing an emergency
government to replace a Hamas-led cabinet without parliamentary
approval. The Palestinian constitutional lawyer who led the framing of
the Basic Law accused some political leaders of "destroying" its
foundation and expressed dismay at how Western powers responded to the
free election of a Hamas government headed by Prime Minister Ismail
Haniyeh by imposing a crippling boycott.
Abbas's office had no immediate comment. A spokesman for his Fatah party
said at the weekend, however, that the president's word was law as long
as Hamas's "mutiny" paralysed parliament.
Washington, which imposed the boycott when Haniyeh took office in March
2006, embraced as "legitimate" the cabinet Abbas appointed after Hamas
routed his Fatah forces in the Gaza Strip on June 14. The European Union
also "emphatically" backed Abbas's actions as "in keeping with the
Palestinian Basic Law".
In their first public comments since Abbas formed a new government, Anis
al-Qasem, who oversaw the writing of the Basic Law, and fellow
independent Palestinian constitutional lawyer Eugene Cotran said the
document whose drafting they began more than a decade ago gave Abbas the
power to dismiss Haniyeh. But, they said, it did not grant him the
power to appoint a new government without legislative approval nor the
right to suspend articles of the Basic Law, as he did last month to
spare new premier Salam Fayyad the need to win a vote in parliament.
Appointed by Yasser Arafat, al-Qasem said the president's powers were
"intentionally and explicitly very restricted".

PRESIDENT'S DEFENCE

However, Azmi Shuaibi, who sat on a
parliamentary committee on the Basic Law, defended Abbas's power to
suspend articles. He said Article 113, which stipulates that the
legislature "shall not be dissolved or suspended during the emergency
situation, nor shall the provisions of this chapter be suspended," meant
he "can suspend articles in other chapters".
Al-Qasem disagreed, cautioning against making "such wild implication ...
particularly where the implication could easily lead to dictatorship --
the system that the Basic Law was intended, in all its provisions, to
guard against".
"They are obviously looking for the slimmest argument to build a
mountain on and dry the ocean. They are destroying the foundation on
which the Basic Law is laid," he told Reuters.
Al-Qasem and Cotran said the Basic Law further prescribes that Haniyeh's
dismissed unity cabinet, which included Abbas's secular Fatah faction,
remain the caretaker administration until Abbas secured parliamentary
approval for a new government.
"What is clear is that ... the Haniyeh government, doesn't fall during
the period of an emergency," Cotran told Reuters.
Al-Qasem said that under Article 78 "the dismissed government would
continue to run the affairs of government temporarily as a caretaker
government until the formation of the new government in the manner
provided by the Basic Law."
He noted Article 79 stipulates "neither the prime minister nor any
minister shall assume his office except after a vote of confidence" from
the legislature. The Basic Law has no specific provisions for an
"emergency" government, he added.
The law says a presidential emergency decree lasts 30 days, extendable
with parliamentary approval. But Cotran said: "That doesn't mean that he
can form a new government. ... Ruling by decree doesn't mean he can
suspend or change the constitution."
Al-Qasem and Cotran made the comments in a series of telephone and email
exchanges over the past week. Al-Qasem was in Spain; Cotran in Britain.
Fatah spokesman Jamal Nazzal was quoted on Palestine Radio saying the
Basic Law does not limit how often the president can declare a state of
emergency, so it can be extended "as long as the mutiny which brought
that situation about continues."

PARLIAMENT

It is unclear what role, if any, the
legislature can play -- over the past year, Israel has arrested nearly
half of Hamas's parliamentary majority bloc, making it virtually
impossible for the body to reach a quorum to hold a vote.
Despite the problems forming a quorum, Cotran said Abbas still needs
parliamentary approval. Ultimately, he said, the Palestinian
constitutional court would have to decide. That, however, appears
unlikely any time soon as the constitutional court is also not
functioning.

Law professor Ahmad Elkhaldi, who worked on
drafts of the Basic Law, said he was concerned Palestinian democracy,
long touted as a goal by Washington, was "in retreat".
A political independent who angered some in Fatah by serving as justice
minister in Haniyeh's first cabinet, Elkhaldi was briefly abducted by
masked gunmen loyal to Fatah last month. "They wanted to send me a
message that 'you have to stop speaking about who is right and who is
wrong'," Elkhaldi told Reuters, with a much-thumbed copy of the Basic
Law lying beside him on his desk at Nablus's al-Najah University. "We
have to work inside the restrictions of the Basic Law, not put the Basic
Law aside and do whatever we want."
In Washington, Nathan Brown, a professor who has advised the
Palestinians and the Iraqis on new constitutions, said: "These are
absolutely and clearly black and white violations. He has no authority
whatsoever to appoint an emergency government."
For al-Qasem, the lawyers' work has been thwarted by the politics of
punishing Hamas for refusing to give up violence:
"The Palestinians were immediately rewarded by the 'democracies' of the
world with an unprecedented crippling siege as a punishment for the
exercise of their democratic right. ... No constitutional draftsman
would anticipate such a situation."